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Speaker's Corner: Rebalancing defamation law in an online age

The legal principles supporting freedom of expression are important to Canadians. That said, these principles have their limits. In a digital age, the laws around defamation have struggled to keep up.

For clients who are dealing with Internet harassment and defamation, there are the substantial costs and hurdles of bringing legal claims against anonymous online harassers. In my own practice, I’ve encountered clients who have been anonymously accused online of murder, fraud, sexual assault and prostitution, among other serious offences. Some of my clients have even received death threats over Internet platforms such as Facebook and Instagram.

Then there are the significant costs of finding the relevant information to identify the culprit. Applications of this sort require a defamation victim to hire legal counsel to review documents, draft materials and attend court. Moreover, the judges sitting on these applications to identify anonymous defamers rightly demand extensive submissions so they can properly balance alleged harm against privacy and free expression concerns. This is particularly the case if the speech is political in nature or relates to whistleblowing, such as where an employee wants to call out an employer for breaking the law or where a member of a corporate board wants to shed light on company misfeasance.

And that’s just the beginning. Once the relevant foundational information is obtained via court order, counsel usually have to work with a host of websites, social media platforms and Internet service providers across numerous jurisdictions for months in order to put a name to the information they’ve obtained. After that, if you actually come up with the defamer’s real identity, you often have to draft a Notice of Libel giving the prospective defendant a chance to apologize. Then, and only then, can you be confident you’ve ticked all the boxes to actually start a legal claim alleging defamation.

While Canadians may be familiar with the term defamation, I believe many are not familiar with the time and cost that goes into preparing for these kinds of lawsuits in an online age. It is because of these expanding costs that reforming the law around defamation is a pressing issue. Without reform of the procedure surrounding online defamation claims, the cost of pursuing anonymous defamers becomes so great that the law’s protection becomes skewed in favour of online trolls.

So, what is to be done? First off, I believe that the law needs greater clarification that some of the procedural steps for a defamation claim, such as a service of libel notice, should not apply to anonymous online publications. The requirement for libel notices arose in an age of media publishers that were easily identifiable, and it was intended to protect public publishers and broadcasters from perennially being afraid of publishing hot-button stories. However, libel notices arguably must be served personally on prospective defendants within very truncated timelines (arguably six weeks from the date the plaintiff became aware of the defamatory statements). This is not an easy task if your harasser is publishing anonymously from their parents’ basement, as opposed to the headquarters of a major newspaper or broadcaster.

Another option would be to make service by email in these cases more broadly acceptable. Again, one of the key considerations in any anonymous defamation proceeding is the costs associated with getting the court’s approval to serve the defendant in a manner other than personal service. By making email service explicitly acceptable where the defendant does not provide a physical address for service, the courts would be redressing the cost imbalance that presently exists between plaintiffs and anonymous defendants.

Obviously, there are some netizens who should rightly stay anonymous — good-faith whistleblowers and political or social activists. But the fairest way to balance these parties’ interests with those of aggrieved claimants is a streamlined process that gets the legal question of “free expression versus good reputation” before the courts quickly. That way, this vital debate is more likely to be settled in a fair manner — on its merits, by a judge.

Without doubt, the answer may sometimes be difficult, particularly where the presumptive defendant is perhaps a corporate/political whistleblower.

For example, the leading case on whether anonymous defamers should be identified, York University v. Bell Canada Enterprises, makes clear that the judge deciding such an application is obliged to consider not merely whether the publication was defamatory but, moreover, whether the publisher of the defamation could have a “reasonable expectation of privacy in relation to the use of the internet for the purpose of publishing defamatory statements.”

This principle provides a ready-made solution for judges who are concerned about the implication of revealing the identity of online publishers who may have good, societally important reasons for keeping their identities private.

Moreover, just in case free expression advocates are worried about the prospect of large corporate or governmental entities using defamation litigation to silence critics, one should also keep in mind Ontario’s new Protection of Public Participation Act, 2015, which now places a high onus on prospective defamation plaintiffs to prove that their claims have merit and are not just strategic lawsuits against public participation suits.

Canadians cannot allow the law of defamation to become slavish to those with thin skins. However, as Supreme Court Justice Ian Binnie stated in WIC Radio v. Simpson, we cannot view reputation as “regrettable but unavoidable road kill on the highway of public controversy.”

Piercing the veil of anonymity in the online world should by no means be easy, but that doesn’t mean to say it should not be just a little easier. With just a little reform to the most basic procedures, Canadian defamation law can reaffirm its vital commitment to free expression without turning our reputations into presumptive roadkill.

Mark Donald is the principal of his own firm, which focuses on corporate, civil and media litigation. He can be reached atmark@markdonaldlaw.com.

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